D.C. Circuit Speaks on Gitmo Habeas Merits

The new year starts with no shortage of Gitmo-related matters to blog about, starting with today’s important decision from a panel of the D.C. Circuit Court of Appeals ruling (for the first time) on the merits of one of the few dozen decided Gitmo habeas petitions. The ruling, affirming the lower court’s decision to deny habeas to a Yemeni detainee, is here.

There a host of interesting holdings here – both on the question of who may be detained under the 2001 Authorization for the Use of Military Force (AUMF), and to what procedures they are entitled in determining their status. But the panel’s ruling on how to interpret the AUMF – namely, that the meaning of the AUMF is not constrained or apparently informed by the international law of war (IHL) – is one of the most troubling highlights.

Before embarking on its analysis of who may be detained under the AUMF, the panel majority writes: “The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts.” While “the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks …, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers.”

Not entirely clear exactly what this means, but let’s start with what this says about the state of judicial deference to executive interpretations of international law. The Obama Administration, after all, had squarely taken the position in briefing the Gitmo cases that IHL directly informs the interpretation of the AUMF. (The Administration also just succeeded in persuading Congress to delete from the latest version of the Military Commissions Act language from the Act’s 2006 version that prohibited so much as the invocation of the Geneva Conventions as a source of law in any U.S. court.) Given how much time courts – especially the D.C. Circuit – have devoted historically to explaining how the President is entitled to deference by the courts on matters of foreign affairs and national security, curious at least that the Administration’s view of this particular question evidently merited no such attention.

Then there’s the matter of the accuracy of the panel’s sweeping – and gratuitous – statement that the international laws of war are not a source of authority for U.S. courts. Set aside the fact that the executive disagrees. And the fact that a majority of the Supreme Court justices in Hamdi also thought international law informed the AUMF’s interpretation. Even the Supreme Court’s recent Medellin decision – with its suspect and starkly limited understanding of the effect of treaties in federal court – seemed to understand that whether or not a treaty is “self-executing” or not (i.e. whether it is a source of authority in U.S. courts) depends not only on the particular treaty but also on the particular provision within the treaty. The D.C. Circuit panel doesn’t pretend to undertake any such analysis. Rather, it finds simply “no occasion… to quibble over the intricate application of vague treaty provisions and amorphous customary principles.” It may be true that IHL ultimately provides inconclusive guidance in settling the legality of detention in a particular case. But the panel here reached out far beyond that in waving aside the Geneva Conventions – and any other source of international law – in their entirety. Poorly done. And rich fodder for appeal.

7 Responses

“The Obama Administration, after all, had squarely taken the position in briefing the Gitmo cases that IHL directly informs the interpretation of the AUMF… Given how much time courts – especially the D.C. Circuit – have devoted historically to explaining how the President is entitled to deference by the courts on matters of foreign affairs and national security, curious at least that the Administration’s view of this particular question evidently merited no such attention.”

The point the court is making is not that IHL is supposed to be ignored, but rather that in the specific questions raised in this appeal it is the job of the political branches to interpret the vague and ambiguous IHL rather than have their interpretation questioned by the courts.

It is the duty of the courts to interpret domestic law. However, the courts have no troops on the ground, no intelligence sources, and no diplomatic contacts. Once the political branches incorporate their interpretation of non-self executing treaties into Foreign Policy or statute, the DC Circuit at least does not think that it is within the proper scope of the Article III branch to second guess those interpretations.

Presumably, in the case of al-Bihani v Obama et al. any opinion that the President has about how IHL should be applied to the issues of the case are reflected in the position he took as one of the named appellees. Or is Deborah’s position that he wants IHL to apply to this case but cannot find anyone in the DOJ or his administration competent to apply it, and therefore wants the DC Circuit to figure out what it means for him?

“Therefore, putting aside that we find Al-Bihani’s reading of international law to be unpersuasive, we have no occasion here to quibble over the intricate application of vague treaty provisions and amorphous customary principles. The sources we look to for resolution of Al-Bihani’s case are the sources courts always look to: the text of relevant statutes and controlling domestic caselaw.”

Consider the last of Al-Bihani’s four arguments: Clearly at some point the Taliban transitioned from being the government in control of Afghanistan to being a non-state party. According to Al-Bihani, at that point the old war against the Taliban (state) ended and a new war against the Taliban (non-state) began (because you can have wars against state parties and wars against non-state parties, but there is nothing in the IHL text that describes a transition between the two). Then, citing some language in the Third Geneva Convention, he argues that POWs have to be released when the transition occurred because it was the end of the war (although it was also the start of a new war).

The opinion charitably calls this “unpersuasive.” My view cannot easily be expressed without peeling paint. If you really think this is “rich fodder for appeal”, while American soldiers are fighting and dying every day in the real war in Afghanistan, then I have to start thinking about re-enabling the Fox News channel on my cable lineup. However, if you just think the dicta was unfortunate language, but the decision was sound, then wait for another case where it matters before you complain.

1.05.2010
at 5:35 pm EST Howard Gilbert

Howard,

While I agree that it may not matter in this case, the opinion is a disgracefully ignorant of over two centuries of Supreme Court precedent that looked to international humanitarian law (a.k.a. the law of war branch of the law of nations) to inform the scope of the executive’s military authority. While we can argue the accuracy of Boumediene, “courts of appropriate jurisdiction” (in this case perhaps erroneously determined habeas jurisdiction) must look to international law “so often as questions of right” are governed by it. The panel’s complete lack of citation when making contrary declarations is most telling. The same draft article (of mine) to which I have earlier referred will clearly explain that customary and conventional IHL is not only relevant, it has been understood to be the ONLY law that governs in the absence of a clearly applicable and controlling public act of the political branches.

Happy New Year to All!

John

1.06.2010
at 12:01 am EST John C. Dehn

(The Administration also just succeeded in persuading Congress to delete from the latest version of the Military Commissions Act language from the Act’s 2006 version that prohibited so much as the invocation of the Geneva Conventions as a source of law in any U.S. court.)

Deborah, I don’t think this is the case. The new MCA did not repeal section 5 of the MCA of 2006 (28 U.S.C. 2241 note), which prohibits asserting the Geneva Conventions as a source of right against the U.S.

1.06.2010
at 11:32 am EST Jen

Thanks, Jen, and you’re right I need to clarify. While it doesn’t change the bottom line conclusion here, as Jen notes, the new MCA didn’t repeal section 5 of the old MCA, which amended the habeas statute directly (rather than the Uniform Code of Military Justice, the target of the new law) to preclude the “invocation” of the Geneva Conventions as a source of rights in habeas proceedings. I suppose after Boumediene overturned the jurisdictional limits on habeas the original MCA imposed, one might question how much of the MCA habeas amendments of 2006 remains good law. But the Boumediene Court didn’t address the section 5 provision one way or another. (I’ve written elsewhere about why I think the provision is of dubious legality in any case: http://hlpronline.com/2009/12/saying-what-the-law-is/). At the same time, and separately, the new MCA, insofar as it amends the rules applicable to military commissions, uses much narrower language than Section 5 did in describing the relevance of Geneva in proceedings involving aliens subject to military commissions. Whereas original MCA section 5 provides sweepingly that “No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories,” in the new military commissions legislation, as far as I can tell Geneva may well be a “source of rights” so long as aliens not invoke it as a basis for a “private right of action.” That is, as long as a military commission defendant is in court already, Geneva is fair game as a “source of rights.” Geneva just doesn’t give him a separate right to sue/cause of action – a far less sweeping restriction on the use of Geneva in commissions than the 2006 Act provided in amending habeas. So my take has been – and remains – that the current administration has signalled in various ways that it is more favorably disposed to the relevance of Geneva in court proceedings than the last administration. In this regard, my criticism about the D.C. Circuit’s approach here (for this and other reasons) stands.

The court was half right under article 6 of the US Constitution: Judges are not bound by customary international law, but they are bound by treaties duly made.

It is odd that the court went so far out of its way to include the gratuitous dicta on treaties. It could simply have relied on the statutory exclusion of the treaties from the standards for habeas. Or, as Judge Williams’s concurrence points out, it could easily have reached the same decision.

I suspect that the majority lost patience with Al Birhani advancing some of the more dreamily utopian (and weirdly formalistic) notions current in parts of the IHL community, and simply wanted to slam the door on future arguments of that sort.

I doubt there this is fodder for appeal, other than perhaps a request for an amended opinion or an en banc hearing to excise the treaty dicta. Although there might be a vote or two for cert, the Supreme Court is not likely to take the case to affirm the disposition (as they certainly would) just to excise some dicta. The Supreme Court is also probably suffering from Gitmo-fatigue, and would like to see the lower courts thrash out the issues before they take up any more cases.

The two concurrences are as interesting as the main opinion:

One says that the “process of literal trial and error” in the courts is a silly way to proceed, and calls on Congress to provide the standards.

The other says that all the dicta in the opinion is gratuitous, and comes to the same result.

1.06.2010
at 1:42 pm EST International Lawyer

Given that the current administration has decided to try as many Guantanamo detainees in civilian court as possible, this raises an interesting question. Suppose one of these detainees raises the obvious defense that he was protected by combatant immunity when he committed the claimed offense (as John Walker Lindh might have claimed had he gone to trial). This is essentially an IHL claim, but now it is raised in the context of the quintessentially Article III domain of a criminal trial. Would a court in the DC Circuit be compelled to defer to the Executive or Congress in evaluating a pre-trial claim of immunity on what is obviously a matter of international treaty or customary law? Wouldn’t such deference violate the basic Constitutional separation of powers or the Article III vesting of judicial power to the courts?

1.07.2010
at 11:06 am EST Howard Gilbert

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